Freedom of establishment and provisions of services

  • Created by: Emma13
  • Created on: 19-06-18 14:13
What does Art 49 TFEU establish?
Freedom of establishment - stable and continued pursuit of activity on a stable and continuous basis
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What does Art 56 TFEU establish?
Freedom to provide services - temporary pursuit of an activity on temporary basis. Temp judged in terms of regularity/ periodicity or continuity
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What are the similarities between Art 49 and Art 56?
Both restrict freedoms prohibited, rights to equal treatment with nationals of MS, abide by same conditions of national (Art 49/57) same exceptions (art 51/52) both cover companies (Art 54/57)
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What are the differences between Art 49 and Art 56?
Scope! Art 49 - businesses 'moves' permanent Art 56 - services only moves Art 57 Temporary pursuit
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What does Gebhard establish?
Any rule, insofar as it is liable hinder or make less the exercise of fundamental freedoms guaranteed by the treaty must full fill 4 conditions.
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What are the 4 conditions of Gebhard?
1. Applied in non-discriminatory manner 2. justified by imperative requirements in general interest 3. suitable for securing the attainment of the objective which they pursue 4. not go beyond what is necessary
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What is the effect of Gebhard?
Applies Cassis approach to non discriminatory IDA restrictions
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What is a non discriminatory restriction?
IDA applies universally but can hinder foreign businesses
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How can a restriction be justified if it is discriminatory and non discriminatory?
Directly discriminatory can only use Treaty exceptions and Non discriminatory can use treaty and cassis style approach as in Gebhard
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What does Alpine Investment establish?
Cassis approach also applies to services
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What does Bosman establish?
Cassis approach also applies to workers
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What does Vans Binbergen establish?
IDA/ND about residence not nationality for services was not justified by Cassis approach in Alpine as disproportionate. Art 56 covers indirect discrimination
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What does Sodemare establish?
IDA/ND establishment case was justified under treaty and Cassis approach in Gebhard. Art 49 covers non-discriminatory restrictions on free movement
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What does Reyners establish?
Directly discriminatory establishment case can only be justified under Art 52 Treaty public policy,security and health. Art 49 covers direct discrimination
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What does Art 57 TFEU establish?
Meaning of services - normally provided for remuneration. Provided establishment in different MS to recipient Art 56, covers various situations.
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What is the service directive for?
Designed to free up market more. Provided directive applies it makes it more difficult for MS to justify restrictions on any service provisions.
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What happens if the service direct doesn't apply?
Traditional approach to restrictions and their justifications applies to those excluded by the directive.
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What does Commission v Italy establish?
Art 49 covers indirect discrimination
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What does Sager establish?
Art 56 covers non-discriminatory restrictions on free movement (services)
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What does Art 52 TFEU establish?
The state can only justify under the exception of public policy, security or health
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What does Art 51 TFEU establish?
The state can only justify under official authority - derogation making police/ judiciary/ civil servant function of state
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What does Art 62 TFEU establish?
Applies Art 51/52 to services
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What does Art 2(1) of Service Directive establish?
Scope of directive - service supplied by provider in MS
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What does Art 4(1) of Service Directive establish?
Definition of business services - service supplied for renumeration
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What does BIS guidance say in regards to the service directive?
Service directive does not apply to purely manufacturing situations
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What does Art 2(2) and Art 2(3) Service Directive say?
Exclusions - non economic services, financial services..e.c.t
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What does Art 14 Service Directive establish and when do you use it?
If Establishing - prohibited requirements that can never be justified (check first)
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What does Art 9 Service Directive establish and when would you use it?
Establishment - authorisation schemes
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What does Art 15 Service Directive say and when would you use it?
Requirements to be evaluated
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When can Art 9 and Art 15 be justified under the Service Directive?
Allowed it non discriminatory, necessary - justified by overriding reasons in public interest (Art 4(8) and proportionate
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What does Art 4(8) Service Directive establish?
Defined overriding reasons relating to public interest - public policy, public security, public health ect
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What does Art 16(2) Service Directive establish and when would you use it?
If providing services, contains prohibited requirements that can never be justified
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What does Art 16(1) Service Directive establish and when would you use it?
Services - any other restrictions; may be allowed if: non discriminatory, necessary i.e justified in the interest of public health/security/policy/environment and proportionate
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Other cards in this set

Card 2

Front

What does Art 56 TFEU establish?

Back

Freedom to provide services - temporary pursuit of an activity on temporary basis. Temp judged in terms of regularity/ periodicity or continuity

Card 3

Front

What are the similarities between Art 49 and Art 56?

Back

Preview of the front of card 3

Card 4

Front

What are the differences between Art 49 and Art 56?

Back

Preview of the front of card 4

Card 5

Front

What does Gebhard establish?

Back

Preview of the front of card 5
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